McCoy v. Barr

1

No. 105,362

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STEPHEN W. MCCOY,
Appellee,

v.

DOROTHY K. BARR
(KATHERINE DEPEW, Successor in Interest),
Appellant,

v.

BOARD OF COUNTY COMMISSIONERS
FOR THE COUNTY OF GREENWOOD KANSAS, et al.,
Appellees.


SYLLABUS BY THE COURT

1.
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law.

2.
In Kansas, it is well settled that an easement may not be abandoned by mere
nonuse; rather, actual relinquishment accompanied by intention to abandon must be
shown.

3.
The scope of an implied easement by necessity is determined by the intent that
may be inferred from the actual use of the dominant tenement at the time of the creation
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of the easement as well as any uses that the facts and circumstances show were in
reasonable contemplation of the parties at that time.

4.
The law contemplates two classes of cemeteries, public and private. The former is
used by the general community, the neighborhoods, or the churches, while the latter is
used only by a family or a small portion of the community.

5.
An implied easement for access to a private cemetery should be narrow in scope,
and the burden on the landowner must be taken into account in granting the easement.

Appeal from Greenwood District Court; JOHN E. SANDERS, judge. Opinion filed April 6, 2012.
Affirmed in part, reversed in part, and remanded with directions.

David P. Troup, of Weary Davis, LC, of Junction City, for appellant.

Paul E. Dean, assistant county attorney, for appellees Board of Greenwood County
Commissioners, et al.

Before ARNOLD-BURGER, P.J., MALONE and HILL, JJ.

MALONE, J.: Katherine Depew, as successor in interest for Dorothy Barr, now
deceased (collectively referred to as Barr), appeals the district court's summary judgment
granting an easement across Barr's property to an abandoned private cemetery for the
purposes of access by employees of the Board of County Commissioners of Greenwood
County (County) to fulfill the County's duties to maintain the cemetery under K.S.A. 17-
1305 and for public visitation. Barr claims the district court erred in determining the
existence of the access easement and in defining the scope of the easement. She also
claims the easement constituted an improper taking of her property without just
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compensation. We conclude the district court did not err in determining that an access
easement exists across Barr's property and that the easement has not been abandoned by
nonuse. However, we conclude the district court erred by granting summary judgment in
favor of the County as to the scope of the easement, and we remand for an evidentiary
hearing to resolve issues as to the physical scope of the easement and the right to public
access to the cemetery.

This dispute concerns the various parties' rights and duties relating to a certain
piece of landlocked real property (Reserved Property) and the property that surrounds it
(Surrounding Property), located in Greenwood County, Kansas. The Reserved Property
and Surrounding Property were originally part of a larger property purchased by John
Gage by patent from the United States in 1876. In 1888, John Gage deeded the property
to his son, John T. Gage, with the following exception:

"[E]xcept [the] right-of-way belonging and deeded unto St. Louis and San Francisco
Railway Co.—also except about 2 acres commencing 25 rods west of the SE corner of S
1/2 of SE 1/4 aforesaid, thence running westerly circling south along the south line of the
aforesaid right-of-way 89 rods, thence south 11 rods—thence east about 15 rods to north
bank of Salt Creek, thence following east along the bank of the creek to a point due south
of the starting point, thence north to the place of beginning and used for family graveyard
and horse [illegible] the railway water tank and in Township 28S of Range 11E."
(Emphasis added.)

The cemetery on the Reserved Property contains 16 visible headstones with as
many as 30 people buried therein. The 2-acre Reserved Property has never been
subdivided or subjected to any official survey filed of record. Only a portion of the
Reserved Property is actually used for gravesites, and the remainder of the property has
been used for farming or pasture over the years. There is no road or recognized path
leading to the Reserved Property, and it is inaccessible except by crossing the
Surrounding Property. A railroad right-of-way runs adjacent to the Reserved Property,
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but the record does not reflect to what extent the parties can gain access to the Reserved
Property by using the railroad right-of-way. The record also does not reflect the distance
from the landlocked Reserved Property to the nearest county road. There have been no
recorded conveyances of the Reserved Property since the 1888 deed. In 1908, the
Surrounding Property was conveyed by John T. Gage to non-Gage family members. Barr
acquired title to the Surrounding Property by deed on December 26, 1973.

In 1996, the County began assessing property taxes against the Reserved Property,
which was identified in county records as a "family graveyard." Property taxes in the
amount of $739.42 went unpaid, and the County initiated a tax foreclosure action
resulting in a publicly noticed sheriff's auction, with John T. Gage, Mary Gage, and John
Gage, addresses unknown, listed as the owners. When Barr learned of the proposed tax
sale, she claimed that she went to the county treasurer's office and tendered payment for
the full amount due, but the employee in the county treasurer's office refused to accept
the payment. The County later denied Barr's allegation that she attempted to pay the
property taxes. The tax foreclosure sale was held on June 2, 2005, at which Stephen
McCoy purchased the Reserved Property for $2,300. McCoy later stated that he
purchased the Reserved Property for his leisure activity and for hunting. McCoy was
aware that the Reserved Property was landlocked but assumed he could gain access by
using the now-abandoned railroad right-of-way bounding one edge of the Reserved
Property.

After the sheriff's sale, McCoy attempted to negotiate with Barr for an easement
across the Surrounding Property to access the Reserved Property, but he was
unsuccessful in doing so. On October 27, 2005, McCoy filed suit against Barr,
contending that he was entitled to an easement across the Surrounding Property. Barr
joined the County and the Greenwood County Clerk (together, County) as parties to the
lawsuit and filed a cross-claim against the County. In her cross-claim, Barr argued that
the Reserved Property was a cemetery and that therefore its sale to McCoy was void
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against public policy and should be set aside. The County filed a counterclaim to Barr's
cross-claim, contending that it should be allowed to partition the Reserved Property so
that the County would have control over the portion containing the actual cemetery and
McCoy would own the remainder. Furthermore, the County alleged that an easement
would be required over the Surrounding Property to access the cemetery for maintenance
purposes by the County and to allow public visitation. Barr replied that the Reserved
Property could not be partitioned, but that if it could, she had acquired title by reversion
or adverse possession to the portion not containing the actual cemetery. She asked that
the County's request for an easement be denied, but if it was granted that she be paid
compensation for the taking of her property.

On December 3, 2007, Barr filed a motion for summary judgment, asking that
McCoy's petition for an easement to access the Reserved Property be denied and that her
cross-claim to set aside the sale of the Reserved Property be granted. In the alternative,
she asked that the noncemetery portion of the Reserved Property be declared her property
and that the County be required to maintain the cemetery. The County and McCoy each
opposed Barr's motion, but neither party filed cross-motions for summary judgment
seeking additional relief from the court.

On March 3, 2008, the district court held a hearing on Barr's motion for summary
judgment and heard arguments of counsel. The district court issued a memorandum
decision on September 23, 2008. The district court found that the entirety of the Reserved
Property was considered a cemetery for purposes of construing the real property rights
involved. The district court further determined that cemetery lands are not subject to laws
normally pertaining to real property such as abandonment and adverse possession. The
district court then found that the County had failed in its statutory duty under K.S.A. 17-
1305 to protect the Reserved Property from loss or alienation and that the tax foreclosure
sale of the Reserved Property to McCoy was void and set aside. Likewise, the district
court rejected Barr's claim of ownership over any portion of the Reserved Property by
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reversion or adverse possession. The district court then directed the County to assume
immediate control of the Reserved Property.

Finally, the district court granted an easement or public right-of-way across the
Surrounding Property for maintenance of the cemetery and public visitation purposes and
enjoined Barr from preventing access by the County or any member of the public who
wished to visit the cemetery. Specifically, the district court entered the following legal
conclusions as to the easement across the Surrounding Property:

"10. As Greenwood County notes in its brief, cemeteries are historically a
place the public visits. Whether it is a private burial ground or Resthaven Mortuary and
Cemetery in Wichita, Kansas, this Court finds that the public has a vested interest in
access to a cemetery in order to pay respects or for historical and genealogical reasons.
Greenwood County is directed to take appropriate steps to provide ingress and egress to
and from the Gage Cemetery. The Court grants to the County an access right in the nature
of a public right of way and/or easement of necessity across defendant Barr's lands for
such purposes.
"11. Defendant Barr is enjoined from preventing access to the cemetery
grounds by the County or any member of the public who may wish to visit the cemetery.
The means of access must remain open. Defendant Barr may not fence out the public or
'hold the keys' so to speak as to someone desiring access to the cemetery."

Barr filed a motion to alter or amend the district court's decision, contending that
the district court went beyond the scope of relief requested by the parties and beyond
statutory authority in granting an easement for the purpose of public visitation. Barr also
asserted that such an expansive easement would create a substantial and unwarranted
burden on the Surrounding Property and constituted a taking of her property without just
compensation. About 2 years later, on October 20, 2010, the district court issued a letter
opinion to counsel denying the motion and reaffirming its previous rulings. With respect
to the physical scope of the easement granted across the Surrounding Property, the
district court's letter opinion stated: "It would be a fairly simple matter for the County to
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gravel an appropriate way from the road to the cemetery and for defendant Barr to fence
off her property from the road to prevent cattle wandering away or cemetery visitors from
trespassing on her lands." The district court's letter opinion to counsel concluded by
stating: "Gentlemen, let us put this case out of its misery."

Barr filed a timely notice of appeal from the district court's judgment. We note
from the record that Barr died during the pendency of the motion to alter or amend and
was substituted for in the litigation by her daughter and successor in interest, Katherine
Depew. For the sake of consistency, we will refer to the defendant as Barr throughout this
opinion. On appeal, Barr does not challenge all the district court's findings and legal
conclusions entered with respect to the rights of the parties. For instance, the district court
found that the entire 2-acre tract constituted and was to be treated as a cemetery. No party
is contesting this finding. Also, the district court found that the cemetery could not be
sold for payment of taxes, and no party is challenging this conclusion on appeal. In fact,
McCoy did not appeal the district court's judgment and the record reflects that he
received reimbursement from the County for the purchase price of the Reserved Property
as required in the order. Thus, McCoy is not a party to this appeal.

Barr makes three claims on appeal. First, Barr claims that the district court erred in
determining that an access easement still exists across the Surrounding Property. Barr
asserts that the easement has been extinguished by abandonment. Second, Barr claims
that if an access easement still exists across the Surrounding Property, the district court
erred in defining the scope of the easement. Third, Barr claims that the district court's
recognition of an access easement for public visitation of the cemetery constituted an
improper taking of her property entitling her to compensation.

The standards for granting summary judgment are well known. When the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, show that there is no genuine issue as to any material fact and that the
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moving party is entitled to judgment as a matter of law, summary judgment is
appropriate. The district court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, the same rules apply; summary judgment must be denied if
reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus
v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).

EXISTENCE OF THE EASEMENT

The parties concede that an implied easement by necessity was created when, by
the 1888 deed, John Gage severed his property into two parcels—the landlocked
Reserved Property (the dominant estate) and the Surrounding Property (the servient
estate)—and conveyed the Surrounding Property to his son while retaining ownership of
the Reserved Property. See Horner v. Heersche, 202 Kan. 250, 254, 447 P.2d 811 (1968)
(implied easement by necessity is created whenever property is completely surrounded by
adjoining lands). But Barr contends that the access easement has since been extinguished,
a claim that the County denies.

On appeal, Barr advances three theories as to why any access easement has been
extinguished: (1) by abandonment, because there is no physical or recorded evidence of
the location of any easement and because there is no evidence that any easement has been
used by a Gage heir in over a century; (2) by adverse possession; and (3) by lack of
necessity, because the Reserved Property can be accessed by the allegedly abandoned
railroad right-of-way. But Barr only incidentally raises the theory of adverse possession
in her brief and has thus abandoned the argument on appeal. See Cooke v. Gillespie, 285
Kan. 748, 758, 176 P.3d 144 (2008). And with respect to lack of necessity, Barr failed to
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raise that theory before the district court and thus cannot raise the issue on appeal. See In
re Care & Treatment of Miller, 289 Kan. 218, 224-25, 210 P.3d 625 (2009).

Thus, the only question properly before this court with respect to the existence of
the access easement is whether the easement has been abandoned. The only facts cited by
Barr in support of her theory of abandonment are that there is no record or physical
evidence of the location of any access easement and there is no evidence of any Gage heir
using an easement to access the Reserved Property within the last century. The County
never contested those facts before the district court and does not do so now. Where there
is no factual dispute, appellate review of an order regarding summary judgment is de
novo. Kuxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010).

In Kansas, it is well settled that an easement may not be abandoned by mere
nonuse; rather, actual relinquishment accompanied by intention to abandon must be
shown. See Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 677, 750 P.2d
398 (1988) (quoting Botkin v. Kickapoo, Inc., 211 Kan. 107, 109-110, 505 P.2d 749
[1973]). "Mere nonuse of property, lapse of time without claiming or using property, or
the temporary absence of the owner, unaccompanied by other evidence showing
intention, generally are not enough to constitute an abandonment." Botkin, 211 Kan. at
110; see Edgerton v. McMullan, 55 Kan. 90, 92, 39 P. 1021 (1895). Barr provides no
authority that the general rule in Kansas that an easement may not be abandoned by mere
nonuse does not apply to an implied easement by necessity.

Although the issue of abandonment generally presents a question of fact to be
determined by the factfinder, there is simply no evidence in this case, other than nonuse
of the easement, that would support any inference that the Gage heirs intended to
abandon the easement created by the 1888 deed. In its decision on Barr's motion for
summary judgment, the district court recognized the existence of an access easement
without addressing the origins of the easement or addressing Barr's arguments that any
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easement had been extinguished, other than to state generally that cemeteries are not
subject to ordinary property laws. But the uncontroverted facts establish that an access
easement still exists across the Surrounding Property, and the district court's decision will
be upheld even though it relied upon the wrong ground or assigned erroneous reasons for
its decision. See Robbins v. City of Wichita, 285 Kan. 455, 472, 172 P.3d 1187 (2007).

SCOPE OF THE EASEMENT

After the district court confirmed the existence of the access easement across the
Surrounding Property, the district court went further and addressed the scope of the
easement. The district court specifically found that the public has a vested interest in
access to a cemetery in order to pay respects or for historical and genealogical reasons.
The district court directed the County to "take appropriate steps" to provide ingress and
egress to and from the Gage cemetery. The district court also enjoined Barr from
preventing access to the cemetery grounds by the County or any member of the public
who may wish to visit the cemetery. In the letter ruling on the motion for reconsideration,
the district court suggested that it would be a fairly simply matter for the County to gravel
an appropriate way from the road to the cemetery and for Barr to fence off her property
from the road to prevent cattle from wandering away or cemetery visitors from
trespassing on her lands.

On appeal, Barr contends that the issue of a public access easement was not
properly before the district court because she did not raise the issue in her motion for
summary judgment and neither the County nor McCoy filed their own motions for
summary judgment nor requested such relief. She also contends that the Reserved
Property is a private rather than a public cemetery and that K.S.A. 17-1305 does not vest
the County with the authority to open the cemetery to the public. Finally, she argues that
the public access easement creates a substantial and unnecessary burden on the
Surrounding Property because any roadway built would bisect her pasture and she would
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be required at her own expense to erect fencing along the roadway in order to keep
animals in and keep the public out.

The County argues that, although it did not file its own motion for summary
judgment requesting a public access easement, it had raised the issue in its counterclaim
and in its response to Barr's motion for summary judgment and therefore Barr should
have been on notice that the issue was before the district court. The County also points
out that a district court has authority to summarily dispose of a matter on its own motion
where there is no genuine issue of material fact and, giving the benefit of all reasonable
inferences that may be drawn from the evidence, judgment must be for one of the parties
as a matter of law. See Phillips v. Carson, 240 Kan. 462, 474, 731 P.2d 820 (1987). The
County further contends that although the Reserved Property is a private cemetery,
K.S.A. 17-1305 gives the County the same authority as the original landowner and thus
the County may open the Reserved Property for public visitation.

The scope of an implied easement by necessity is determined by the intent that
may be inferred from the actual use of the dominant tenement at the time of the creation
of the easement as well as any uses that the facts and circumstances show were in the
reasonable contemplation of the parties at that time. Stroda v. Joice Holdings, 288 Kan.
718, 724-25, 207 P.3d 223 (2009) (relying on Restatement [First] of Property § 484,
comment b [1944]). The test for determining the scope of an implied easement by
necessity is inherently factual. Where an appellate court reviews a district court's
determination of the scope of an easement based on undisputed facts, review is unlimited.
Stroda, 288 Kan. at 720.

Physical Scope of the Easement

Barr's motion for summary judgment requested that McCoy's petition for an
easement to access the Reserved Property be denied and that her cross-claim to set aside
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the sale of the Reserved Property be granted. In the alternative, she asked that the non-
cemetery portion of the Reserved Property be declared her property and that the County
be required to maintain the cemetery. Barr's motion for summary judgment did not
request the district court to determine the physical scope of any easement, and neither the
County nor McCoy filed cross-motions for summary judgment requesting such relief. We
agree with Barr's contention on appeal that determination of the physical scope of the
access easement was not properly before the district court on summary judgment.

Moreover, Barr's statement of uncontroverted facts only included facts relevant to
the creation and existence of the easement and the sale of the Reserved Property to pay
for the taxes. As to access to the cemetery for maintenance, no evidence was presented to
the district court regarding (1) what kind of equipment the County will need to bring to
the cemetery in order to care for the property, (2) whether the abandoned railroad right-
of-way can provide suitable access to the cemetery, (3) what is the distance between the
cemetery and the nearest county road, (4) what is the most direct route between the
cemetery and the nearest county road, (5) whether a roadway or a path is necessary to
gain access to the cemetery and if so how wide, and (6) where should the roadway or path
be located, (7) to what extent is the Surrounding Property used for farmland or pasture
and to what extent will the Surrounding Property be damaged by the construction of a
roadway or path, and (8) which party is responsible for maintenance and costs, including
any fencing that may be necessary to protect Barr's property. Furthermore, the district
court's order merely directed the County to "take appropriate steps" to provide ingress
and egress to and from the cemetery without providing any specific orders or guidance on
how this task is to be accomplished.

Determination of the physical scope of the easement is inherently factual.
Although determination of the scope of an easement becomes a legal question where the
facts are undisputed, here the district court was presented with insufficient evidence to
determine the physical scope of the easement on summary judgment. Furthermore, the
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district court's ruling was not specific as to what steps must be taken to provide ingress
and egress to the cemetery. We conclude the district court erred by granting summary
judgment in favor of the County as to the physical scope of the easement, and we remand
for an evidentiary hearing and more specific findings and orders by the district court as to
the physical scope of the easement.

Public versus Private Access to the Cemetery

In addressing the scope of the easement, the district court specifically found that
the public has a vested interest in access to a cemetery in order to pay respects or for
historical and genealogical reasons. Based on this consideration, the district court
enjoined Barr from preventing access to the cemetery grounds by the County or any
member of the public who may wish to visit the cemetery. Barr contends the issue of a
public access easement was not properly before the district court on summary judgment.

In granting summary judgment, the district court found that the County had failed
in its statutory duty under K.S.A. 17-1305 to protect the Reserved Property from loss or
alienation. K.S.A. 17-1305 provides in relevant part:

"All private burying grounds not otherwise expressly provided for by will, deed,
or in the actual possession of the owner in life, shall be under the exclusive control of the
county clerk of the county in which said burying ground may be situated; and it is hereby
made the duty of said clerk to commence a civil suit or suits for any damages that any
other person may do or cause to be done to said burying ground, or to the fence, gates or
bars enclosing the same, or of any graves or monuments therein." (Emphasis added.)

As the County points out, K.S.A. 17-1305 was originally enacted in 1870, before
the easement in this case was created. The statute was virtually identical to its present
form, except that "exclusive control" over private burying grounds was vested in a
probate judge rather than in the county clerk. See L. 1976, ch. 145, sec. 41; L. 1977, ch.
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109, sec. 12. Thus, the County contends that the parties should have been on notice that
the Reserved Property could come under the "exclusive control" of some governmental
entity and could be opened to the public by that governmental entity. Barr claims that
"exclusive control" as used in the statute only places the County in a caretaker capacity to
prevent damage or spoliation to the cemetery but does not allow it to exercise ownership
rights such as opening it to the general public.

The law contemplates two classes of cemeteries, public and private. The former is
used by the general community, the neighborhoods, or the churches, while the latter is
used only by a family or a small portion of the community. See City of Wichita v.
Schwertner, 130 Kan. 397, 400, 286 P. 266 (1930). The reservation in the 1888 deed
states that the Reserved Property was used as a "family graveyard," and there is no
evidence in the record that John Gage dedicated the Reserved Property for use by the
general community. Furthermore, the evidence before the district court on summary
judgment established that no Gage heir had sought permission to visit the cemetery
within the last century. Thus, the cemetery created by the 1888 deed is more accurately
categorized as a private cemetery rather than a public cemetery.

The parties agree that maintenance and control of the abandoned Gage cemetery is
governed by K.S.A. 17-1305, which explicitly pertains to "private burying grounds." But
the statute does not vest the County with rights "as great as the original landowner," as
the County suggests. The County does not gain actual title to the property and could not
alter the character of the property so that it is used for anything other than a cemetery.
Nonetheless, there is nothing in K.S.A. 17-1305 that would prohibit the County from
allowing the general public to visit a private cemetery under the County's control, as long
as the cemetery retains its character as such. And Kansas courts appear to have
recognized that there is a public aspect to cemeteries, whether public or private:

"In Cemetery Ass'n v. Meninger, 14 Kan. 312, 317, it was said:
15

"'A cemetery is as public a place as a court-house, or a market. . . . We may keep
away from the court-house, and avoid the market, but the place of the dead none may
shun.'
" . . . Several sections of our statutes related to cemeteries. [Citations omitted.]
These disclose the public aspect of cemeteries, and something of the vital interest the
living have in the places of burial of their relatives and friends." Schwertner, 130 Kan. at
400.

An implied easement for access to a private cemetery should be narrow in scope,
and the burden on the landowner must be taken into account in granting the easement.
Some guidance in defining the scope of an implied easement to a private cemetery is
provided by Hines v. State, 126 Tenn. 1, 149 S.W. 1058 (1911). In Hines, a landowner set
aside a portion of land in one of the cultivated fields on his farm as a family burial
ground. He later conveyed the portion of the farm surrounding the cemetery to his
children, and it was later conveyed to nonrelatives. None of the conveyances explicitly
reserved the cemetery, but the Hines court found that such reservation was implied. 126
Tenn. at 4-5. The Hines court further held that the descendants of those buried in the
cemetery had rights of burial and rights of access to the cemetery, but the court specified
that the rights must be exercised "in a reasonable manner and at reasonable times, so as
not to unnecessarily injure the owner of the farm in its cultivation and use." 126 Tenn. at
4.

Here, the district court enjoined Barr from preventing access by the County or any
member of the public who wished to visit the cemetery. We conclude there was
insufficient evidence for the district court to make this determination on summary
judgment. As indicated earlier, Barr's statement of uncontroverted facts only included
facts relevant to the creation and existence of the easement and the sale of the Reserved
Property to pay for the taxes. The district court was presented with insufficient evidence
relevant to the issue of public versus private access to the cemetery. Although there is
some authority supporting the district court's finding that cemeteries are historically a
16

place for public visitation, here the district court failed to take into account the burden on
the Surrounding Property by making the cemetery open to the public. The district court's
order also drew no distinction between permitting visitation to the cemetery by only
Gage-family heirs or by members of the public at large. We conclude the case must be
remanded for an evidentiary hearing by the district court to properly determine to what
extent, if any, the cemetery grounds must be open to members of the general public.

Finally, Barr claims that the district court's recognition of an access easement for
public visitation of the cemetery constituted an improper taking of her property entitling
her to compensation. Although Barr raised this issue in her reply to the counterclaim, she
did not request this relief in her motion for summary judgment. Furthermore, the district
court did not address this issue in its ruling. Because we are remanding this case for the
district court to properly determine the scope of the access easement, we deem Barr's
final issue to be premature and not ripe for appeal.

In summary, we conclude the district court did not err in determining that an
access easement exists across Barr's property and that the easement has not been
abandoned by nonuse. However, we conclude the district court erred by granting
summary judgment in favor of the County as to the scope of the easement and we remand
for an evidentiary hearing to resolve issues as to the physical scope of the easement, and
the right to public access to the cemetery. In determining the proper scope of the
easement, the district court should consider the intent that may be inferred from the actual
use of the dominant tenement at the time of the creation of the easement as well as any
uses that the facts and circumstances show were in reasonable contemplation of the
parties at that time. See Stroda, 288 Kan. at 724-25.

Affirmed in part, reversed in part, and remanded with directions.